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DANIELS v. CLEGG,

iner, 19 Conn., 507; Kerr v. Forgue, 54 Ill., 482; Chic., Bur. & Quincy R. R. Co. v. Dewey, 26 Ill., 255.

The charge in this case comes directly within this principle. The defendant saw the plaintiff's daughter approaching, driving the horse and carriage. No one would ordinarily expect, and the defendant had no right to expect, from a young woman thus situated, the same amount of knowledge, skill, dexterity, steadiness of nerve, or coolness of judgment, in short the same degree of competency, which he would expect of ordinary men under like circumstances; nor, consequently, would it be just to hold her to the same high degree of care and skill. The incompetency indicated by her age or sex,-without evidence (of which there is none) of any unusual skill or experience on her part,—was less in degree, it is true, than in the case of a mere child; but the difference is in degree only, and not in principle. We think the charge upon this point was correct; and that the court also properly charged that "while it is lawful for a person to travel on the left of the middle of the road when it is not occupied by a person coming in an opposite direction, still, as the law requires him to turn out seasonably when he meets a team, the law would require him to use more than ordinary care to keep out of the way and avoid a collision with passing teams, while on the left of the center of the road; and unless defendant used a very high degree of care to get out of the way, and to the right of the center of the road, and the collision occurred on the left of the center of the road, and without the material negligence of the plaintiff's daughter, the defendant would be liable."

The judge further charged that what is meant in the statute (Comp. L., § 2002) by "the traveled part of the road," is that part which is wrought for traveling; and this is assigned for error.

If this is not the meaning of the statute, then (I put the case by way of illustration) though the traveled track (where the wheels have generally run) might in the present

DANIELS v. CLEGG.

instance have been within one or two feet of a perpendicular bank or wall, or of a deep and impassable ditch on the north side of the road,-the defendant's left, and though the wrought part of the road might have been two rods wide at his right and in good order for traveling, the defendant would have been under no obligation to turn to the right beyond the center of the wheel tracks, though by neglecting to turn further he left no room at his left in which the plaintiff's daughter could possibly pass with the horse and carriage she was driving, and if the road continued thus narrow and impassable, for the whole space between them when they first saw each other, and for some distance behind her carriage, and if he had a right to refuse to turn beyond the center of the traveled track, he had the right to drive on, giving her only that amount of room, and she could neither drive forward nor stand still, with safety. And, though she might, under the circumstances, perhaps, be excused in attempting to escape from the dilemma by turning to her own left and driving around his team and vehicle, clearly she would have been under no greater obligations to do so (when the statute gave her the right, if it did not give her the duty to turn to the right) than he would have been to turn far enough to his right to make it possible for her to pass. And if she had stood still after getting as far as possible to her right hand of the road, would he have had the right to drive on as long as his vehicle was south of the center of the traveled track, though in doing so he should drive over her? Does not the statute, upon the construction claimed by the counsel, bring the rights of the parties, as well as their vehicles, to a dead lock?

All who have any experience in traveling the common roads in this country know, that while it is common to work fit for traveling a space in or near the center of the four rods right of way, amply sufficient, and generally more than sufficient, for teams and carriages safely to pass, yet the track where most of the travel goes, or in other words

DANIELS v. CLEGG.

the most traveled wheel track, is often near, and sometimes within a foot of one side or the other of the part thus fitted for traveling, as chance or the caprice of the drivers or their teams may direct; and hence the interpretation of the statute, contended for by the plaintiff in error, would render the statute an actual obstacle, instead of a protection to travel, in many cases. But in fact all the wrought part of the road is generally traveled to a greater or less degree, and must necessarily be in turning out when teams meet or pass each other.

The construction adopted by the court is the same adopted by the supreme court of Massachusetts, under the same provision of statute, in Clark v. Com'th, 4 Pick., 125, decided in 1826. The same provision was enacted into our statutes in the revision of 1838 (Part 1, Title IX., Ch. 8, § 1), though we had a similar statute from 1833 (Laws of 1833, p. 116, § 38), which used the term "center of the road." In adopting this provision from the Massachustts statute in 1838, it is reasonable to suppose the legislature meant to adopt it with the same meaning thus settled by the courts of that state, as shown by the case above cited, and decided twelve years before. And though the supreme court of that state seem to have since, in 1846 (Com'th v. Allen, 11 Metc., 403), adopted the contrary interpretation now contended for by the plaintiff in error, we are not satisfied with the correctness of the decision, and think such an interpretation of the statute, as applied to common roads in this state, would be extremely pernicious, and contrary to the legislative intent.

A point is raised by the brief of the plaintiff in error, and was urged upon the argument, that the plaintiff below did not prove on the trial that the horse and buggy were his. In answer to this it is sufficient to say that this is not a case made, setting forth facts found or admitted, but a bill of exceptions; that by the bill it does not appear that any such point was raised at the trial; no exception was taken on any such ground, nor any such error assigned.

DANIELS V. CLEGG.

And the requests of the defendant below, and the whole frame of the bill, go upon the implied admission that the plaintiff's ownership was not contested, but either clearly proved or admitted.

It is further objected that no mere action of trespass, like the present, will lie; but that the action should have been brought directly upon the statute, and the declaration should have averred the neglect or refusal seasonably to turn to the right of the traveled road, as the real ground of the action. Such an allegation would undoubtedly be necessary in a prosecution for a penalty under this statute, where this neglect would be sufficient to render the defendant liable, without reference to the plaintiff's or complainant's negligence. But whether this neglect of the defendant would alone authorize the plaintiff to recover damages in a civil suit upon the statute, in which the declaration merely alleged that neglect or refusal as the only cause of the injury (see Goodhue v. Dix, 2 Gray, 181), we need not decide, though we are inclined to think the proof of such neglect of the defendant would not even there be sufficient without evidence of ordinary care on the part of the plaintiff.-See Com. v. Allen, 11 Metc., 403; Kennard v. Burton, 25 Me., 39.

But we see no reason to doubt the right of the plaintiff to maintain this action of trespass, for the injuries done to his horse and carriage by the defendant driving his wagon against it, or by placing it in the way when she was rightfully passing, or neglecting to turn out, as she had a right to expect he would. His duty to turn to the right beyond the center of the road, was imposed by the statute; but the duty is the same and the effect the same, whether imposed by a statute, or by custom, or by common law; and it may be doubted whether, in the absence of any statute, in this country, after the custom had become settled as it long ago was, to turn to the right of the center of the road when teams meet, the same duty would not be recognized by the courts, as the like duty of turning to the left

DANIELS V. CLEGG.

was in England, as a part of the common law.

But with the statute we see no difficulty in sustaining this commonlaw action of trespass.

It is quite probable that the limitation of one year, fixed by section 2003, Compiled Laws, would apply to this, as well as to the public prosecution, or the strictly statute actions there provided for, as the terms, "any action for such damages," etc., are broad enough to cover it.

We think the declaration in the justice's court was sufficient, where no formal declaration is required, and unless objected to, almost any declaration must be held sufficient which indicates the general nature of the plaintiff's claim.

One assignment of error remains to be noticed. The court charged that "if the jury should find from the evidence that when the collision occurred the defendant was driving on the left of the middle of the traveled part of the road, it is evidence tending to prove, and raises the presumption, that the collision was caused by the wrongful act and negligence of the defendant; but that presumption may be overcome and rebutted by evidence that satisfies the jury that the defendant attempted seasonably to turn to the right of the center of the road, and that the plaintiff's daughter might have avoided the collision by the exercise of ordinary care, and that her negligence caused or materially contributed to the collision."

This charge, if standing alone, and as the only charge upon the point, might have been erroneous, as it might then have been understood as intended to declare that the burden of proof was upon the defendant to show that the plaintiff's daughter did not exercise due care; but when taken in connection with the whole charge upon this point, in which the jury had been told that "the burden of the proof was on the plaintiff, not only to show negligence and misconduct on the part of the defendant, but also to show ordinary care and diligence on his own part," we think the jury could not have been misled by it. And it will be noticed that this charge does not require that the defendant

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